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Historic NLRB Complaint Could Be First Step Toward Making Employee Misclassification a Crime

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The National Labor Relations Board (NLRB) has issued a historic complaint on behalf of port truckers working as independent contractors for Intermodal Bridge Transport (IBT).  The complaint, issued by Region 21 of the NLRB, claims that managers and supervisors for IBT made illegal threats against drivers they viewed as pro-union. It could eventually lead to a trial in which a judge determines whether misclassification itself is a crime, which would set a tremendous workers’ rights precedent.

In recent years there has been a movement among both labor and port truckers to end the common practice of misclassifying employees as independent contractors.  Independent contractors have no right to organize and have far fewer legal protections.  The specific allegations stemming from the Region 21 complaint include:

• Intermodal Bridge Transport managers and supervisors interrogated employees about their support for the Union, promised more work to employees if they ceased engaging in Union activities, and threatened employees with job loss and other unspecified reprisals if they continued to support the Union; and
• “Intermodal Bridge Transport has misclassified its employee drivers as independent contractors, thereby inhibiting them from engaging in Section 7 [union] activity and depriving them of the protections of the Act.”

Much of the momentum that has swung in truckers’ favor has been the result of work done by the group Justice for Port Drivers, which was organized by the Teamsters union. Julie Gutman Dickinson, attorney for the Teamsters’ Port Division, said:

“The Complaint issued by the NLRB Regional Director represents a determination that misclassifying drivers in and of itself violates the NLRA.  The complaint will lead to an historic trial where for the first time, a Judge will determine whether the act of misclassifying drivers in and of itself violates the National Labor Relations Act.

If a company misclassifies its drivers as independent contractors when in fact they are employees, as is a common practice in port trucking across America, it is effectively telling workers that they cannot unionize, and thereby interfering, restraining, and coercing them in the exercise of their very basic rights to choose whether or not to form a union. The issuance of this Complaint by the Regional Director – and now the prosecution of the Complaint by the General Counsel of the NLRB – will send the message loud and clear to the trucking industry that misclassification carries a high price, and that companies can no longer violate the law with impunity without multimillion dollar liability, recurring labor unrest, and contempt of court, including fines and imprisonment.”

IBT drivers went on strike for the third time this Wednesday, calling for a wholesale end to misclassification. The truckers also claim favoritism, retaliation, and harassment is rampant at the company. Earlier strikes took place in April and October of 2015.  Jose Ortiz, a misclassified independent contractor employed by IBT, explained the situation he and his coworkers face:

“My trucking company basically treats us drivers like slaves.  The company deducts the cost of diesel fuel, insurance and truck lease payments from our paychecks every week.  But as a subsidiary of COSCO, Intermodal Bridge Transport is basically owned by the Chinese government.  

Why can my employer get away with not respecting U.S. labor laws by stealing wages from us and playing favorites with certain drivers who promise not to stand up for our right to drive safe trucks and to receive the benefits of employees.

It’s a good question, and a judge may soon take it up.

A full list of complaints brought to the NLRB can be viewed via the Teamsters.


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